The Role of the Clean Air Act's Goals in Clean Power Plan Litigation

September 08, 2016

The Clean Power Plan has been widely touted as significant because it regulates the largest source of carbon dioxide (CO2) emissions in the United States – the electric power industry. Its significance, however, goes beyond U.S. CO2 emissions because it serves as the linchpin of international efforts to reduce greenhouse gases in order to avoid dangerous climate disruption. The rule gave the Obama administration sufficient credibility to persuade the Chinese to pledge limits on their own greenhouse gas emissions for the first time and paved the way for worldwide pledges of significant emission reductions at the Paris Conference last December. If the U.S. fails to promptly implement this rule because of an unfavorable judicial ruling, the Paris agreement could unravel, as developing countries do not consider it equitable to demand reductions from them without significant reductions by the United States and other wealthy countries.

Given the seriousness of global climate disruption and the Clean Power Plan's international role, the rule's survival matters more to achieving the Clean Air Act's stated goal – protecting public health and the environment – than any pollution reduction standard that the U.S. Court of Appeals for the D.C. Circuit has ever reviewed. And to the extent possible, courts must construe a statute in a way that furthers its goals. See David M. Driesen, Purposeless Construction, 48 Wake Forest L. Rev. 97 (2013).

Adherence to the goals canon of statutory construction becomes especially important as a statute ages. As government agencies and courts apply old statutes to new problems, speaking about what Congress "intended" with respect to very specific questions becomes more and more fictional. We do not know how the Congresses of 1970, 1977, and 1990, which created the modern Clean Air Act, would have wanted to regulate greenhouse gas emissions from power plants because the representatives and senators in office during those years did not think about that question. But we do know that those Congresses wanted to protect public health and the environment, which suggests that the courts should carefully avoid unwarranted restrictions on EPA's capacity to achieve that goal.

The electric utility owners and states challenging the Clean Power Plan (hereinafter, polluters) have put forth a number of policy arguments designed to induce the D.C. Circuit to read restrictions into the Clean Air Act that are not stated in the statute itself – such as a restriction on generation shifting (reducing use of dirty power plants while increasing use of cleaner power plants). Courts, however, have a duty when adapting a statute to a new problem to resolve any ambiguities in accordance with stated statutory goals, rather than attribute lawyers' policy arguments to Congress.

For example, the polluters argue that the Clean Power Plan would lead to closure of coal-fired power plants, suggesting that Congress would never authorize a rule closing a plant. Coal-fired power has become uneconomic and utilities are closing them down all over the country, mainly thanks to a decline in the price of cleaner natural gas and renewables, so the Clean Power Plan's contribution to this trend may prove minor.

In any case, the Clean Air Act aims to protect public health, not each dirty old power plant in the country. Indeed, the legislative history suggests strongly that Congress expected older power plants to shut down long ago because they would become uneconomic or break down. So, reading the Clean Air Act as containing a tacit prohibition on relying on emission limits that might cause some coal-fired power plants to operate less often or even shut down seems inappropriate. Indeed, the overall philosophy of the Clean Air Act supports requiring polluting facilities to achieve the emissions levels necessary to protect public health and the environment or shut down. See Union Electric v. EPA, 427 U.S. 246, 259 (1976) (citing S. Rep. No. 91-1196, pp. 2-3 (1970)).

Similarly, the polluters argue that section 111 of the act prohibits requiring the owners of dirty plants to subsidize clean ones, implying that the statute silently prohibits any pollution control measure that involves paying somebody else to make it easier to reduce a plant's pollution. Once again, the statute does not literally rule out any pollution reduction technique (see related post). Utilities usually own a portfolio of power plants, and the Clean Air Act contains no prohibition on having utilities invest more in cleaner ones and relying less on dirty ones. Indeed, all pollution control measures require plant operators to pay somebody else for activities that reduce pollution. Power plant owners using scrubbers pay somebody else to manufacture and deliver them, and those switching to cleaner fuels pay somebody to produce and deliver the cleaner fuel. No power plant is an island.

Once judges fail to interpret a statute, if fairly possible, to advance its stated goals, the door is open to judicial activism. It is too easy for judges to simply imagine that Congress could not have intended a particular outcome because that outcome does not seem sensible to the judge. In Justice Antonin Scalia's words, judges can too readily assume that Congress "must have meant" what the judges think it "should have meant." But the Congresses of 1970, 1977, and 1990 operated in a world where the idea of protecting the environment and public health enjoyed widespread support from both political parties. If judges are to implement the intentions of the relevant Congresses, and not their own contemporary political preferences, they need to construe the statute to protect public health and the environment, not to serve policy goals that Congress did not expressly include in the statute.

I you have read the amicus filed by my Minority Counsel, Tom Jorling and myself, you would see that the judiciary does not have to "reach" to find authority for the CPP. Congress clearly intended, and adopted a road map, to regulate later identified pollutants. We did this because we were well aware of the limits on our knowledge and we appreciated that science would reveal problems of which we had not a clue. — Leon Billings

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Also from David Driesen

David M. Driesen is a University Professor at Syracuse University College of Law, and an Adjunct Associate Professor at the State University of New York College of Environmental Science and Forestry. He holds a J.D. from Yale Law School. He is a member of the editorial board of the Carbon and Climate Law Review, published in Berlin and Environmental Law, published in Oxford.